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Board Issues Decision in Gurinder S. Sandhu dba Sandhu Bros. Poultry and Farming, Case No. 2012-CE-010-VIS

On November 13, 2014, the Board issued is decision and order in the above-entitled case.

This case arises from an unfair labor practice (ULP) charge filed on May 25, 2012, by Elvia Hernandez (Hernandez) alleging that Respondent, Sandhu Bros. Poultry and Farming violated the Agricultural Labor Relations Act (ALRA) by firing her on May 12, 2012, for engaging in protected concerted activity.

Administrative Law Judge (ALJ) Decision

The ALJ found that Hernandez engaged in protected concerted activity when she and other workers protested a change in work assignments and complained about accompanying issues such as payment for wait time and the untimely distribution of paychecks. The ALJ concluded that when Hernandez became very vocal about these issues, Respondent’s supervisor, Kelly Sandhu discharged her in retaliation for her protests. Although there was testimony at the hearing in this matter that Hernandez and several of her co-workers complained during the 2011 harvest season about sexual harassment by another supervisor, Rupy Sandhu, the ALJ ultimately did not reach any conclusion about whether the alleged sexual harassment had taken place because he found that the General Counsel failed to offer evidence that Hernandez’s 2011 sexual harassment complaints were a motivating factor in her 2012 discharge. With respect to the remedy for the unlawful discharge, the ALJ found that Respondent had made a valid offer of reinstatement to Hernandez, and that the General Counsel did not meet her burden of showing that there were special circumstances which made it objectively reasonable for Hernandez to reject the offer of reinstatement. Thus, the ALJ found that Respondent’s back pay liability terminated on the date Hernandez rejected the offer of reinstatement. In discussing the remedy, the ALJ noted that continued backpay after a refusal to accept an offer of reinstatement is often referred to as “front pay” and that neither the ALRB nor the National Labor Relations Board (NLRB) has ever awarded front pay because it is “probably” not statutorily authorized. Finally, the ALJ rejected the sexual harassment training remedy sought by the General Counsel because this remedy was beyond the scope of the Board’s statutory mandate.

Board Decision

The Board affirmed in part and overturned in part the decision of the ALJ. The Board affirmed the ALJ’s conclusion that Kelly Sandhu fired Hernandez in retaliation for her protected concerted conduct on May 12, 2012. While the Board affirmed the conclusion that the record did not support a finding that Hernandez’s complaints about sexual harassment made in 2011 were a basis for the unfair labor practice violation in 2012, the Board explained that Hernandez’s sexual harassment complaints were protected concerted activity. Citing the recent decision by the NLRB, Fresh and Easy Neighborhood Market, Inc. (2014) 361 NLRB No. 12, the Board found there was ample evidence that in 2011, Hernandez was engaged in concerted activity for the purpose of mutual aid and protection, and the Board emphasized that its discussion set forth the correct standard for evaluating in the future whether complaints about sexual harassment are protected concerted activity under the ALRA.

The Board affirmed the ALJ’s conclusion that Respondent’s offer of reinstatement was sufficient and was conveyed to Hernandez; however, the Board found that Hernandez’s rejection of the offer of reinstatement was objectively reasonable under the circumstances, because the record supported the conclusion that there was a high likelihood that Hernandez, if reinstated, would have to work in close proximity to Rupy Sandhu without any reasonable assurance that she could trust Respondent to protect her from abuse. Therefore, the Board found that Respondent’s back pay liability did not terminate on the date Hernandez rejected the offer of reinstatement. The Board disagreed with the ALJ that continued back pay after Hernandez refused to accept the offer reinstatement (or “front pay”) is not an available remedy under the ALRA, and the Board held that, in addition to back pay extending from the date of Hernandez’s unlawful termination until the date of the Board’s order, under the circumstances of this case, an award of “front pay” continuing during the period between the Board’s order and the time that Respondent makes a valid offer of reinstatement which assures there are no continued onerous working conditions at Respondent’s operations was appropriate.

See Gurinder S. Sandhu dba Sandhu Bros. Poultry and Farming (2014) 40 ALRB No. 12

Board Issues Decision in Kawahara Nurseries, Inc., Case No. 2011-CE-004-SAL

On October 30, 2014, the Board issued is decision and order in the above-entitled case.

Background

On January 14, 2014, Administrative Law Judge Douglas Gallop (the “ALJ”) issued a decision concerning unfair labor practice (“ULP”) allegations that Kawahara Nurseries, Inc. (the “Employer”) unlawfully laid off supporters of the United Farm Workers of America (the “UFW”) and later refused to rehire said supporters (the “alleged discriminatees”). The ALJ found that all the allegations were closely related to changes that were timely asserted in the initial charges and were therefore timely, with the exception of layoffs occurring more than six months prior to the filing of the initial charges. The ALJ found that the General Counsel failed to establish a prima facie case that the layoffs of the alleged discriminatees were unlawfully motivated. The ALJ also dismissed the rehire claims of alleged discriminatees who had failed to apply for rehire but found that those who did apply were unlawfully rejected. Finally, the ALJ found that two of the alleged discriminatees were unlawfully denied rehire because they had given testimony in an ALRB proceeding. Both the Employer and the General Counsel filed exceptions.

Board Decision

The Agricultural Labor Relations Board (the “Board”) upheld the ALJ with respect to the timeliness of the claims, and the rehire claims but reversed the ALJ with respect to the layoffs. The Board found, contrary to the ALJ, that the General Counsel established a prima facie case that the layoffs were unlawful, relying on the work and disciplinary histories of the alleged discriminatees, the commission of contemporaneous ULPs and anti-union statements by the Employer, and the presentation of shifting and inconsistent justifications for the Employer’s actions. The Board further found that the Employer failed to establish that it would have made the same decisions in the absence of the alleged discriminatees’ protected conduct, rejecting the Employer’s contention that the fact that there were UFW supporters who were not laid off precluded a finding of unlawful motive. The Board found that denials by the Employer’s supervisors that they took union support into account in completing “expanded evaluations” that were used in the layoff selection process, which were credited by the ALJ, were insufficient to overcome the substantial evidence in the record warranting drawing an inference of unlawful motivation.

See Kawahara Nurseries, Inc. (2014) 40 ALRB No. 11

Board Issues Decision in George Amaral Ranches, Inc., Case No. 2014-CE-033-SAL

On October 15, 2014, the Board issued is decision and order in the above-entitled case.

Background

Charging Party and Intervenor, United Farm Workers of America (“UFW”), has been the certified collective bargaining representative for the agricultural employees of George Amaral Ranches, Inc. ( “Employer”) since July 24, 2012. On June 17, 2013, the UFW filed unfair labor practice (“ULP”) charges against the Employer in the above-referenced case, alleging that, on June 14, 2013, its owner (“the owner”) threatened and physically attacked (by dragging and pulling, striking, and throwing a rock) a UFW organizer in the presence of three employees, which resulted in minor injuries to the organizer (marks and scratches on his chest). It was further alleged that the owner then unlawfully terminated the three employees who witnessed the confrontation.

ALJ Decision

On May 22, 2014, the Administrative Law Judge (“ALJ”) issued a decision is this matter, in which he found that the organizer legally took access to the Employer’s area of operations on the day of the incident, as he was investigating the status of persons who, though performing work for Employer, were employees of a company called Green Pak. The ALJ also found that Green Pak was acting as a farm labor contractor for Employer. The ALJ concluded that both the proprietor of Green Pak and the owner had threatened to call law enforcement on the organizer, and that such threats, though not alleged in the complaint constituted ULPs, as they had been fully litigated at the hearing. The ALJ found that the Employer’s owner did not drag and pull the organizer, but further found that he struck the organizer in an attempt to take the organizer’s cell phone, and that this act did not constitute a ULP, as the owner believed that the organizer was using the phone to record their confrontation. The ALJ did not make any finding regarding the cause of the marks and scratches on the organizer’s chest, or the alleged throwing of a rock. The ALJ finally held that the three employees had reasonable cause to believe they had been fired, but were not entitled to backpay, as the owner made them a valid offer of reinstatement a few minutes after firing them, and their rejection of this offer was unreasonable.

The Employer filed exceptions to the ALJ’s decision, arguing that the Board should overturn all findings of violations. The General Counsel (GC) and the UFW filed exceptions arguing, inter alia, that the ALJ erred in not finding the striking of the organizer to be a ULP, and also in finding that the three employees unreasonably rejected Employer’s offer of reinstatement.

Board Decision

The Board affirmed all the ALJ’s credibility determinations. However, the Board rejected the ALJ’s conclusion that the striking of the organizer did not constitute a ULP, and also rejected the ALJ’s conclusion that the three terminated employees unreasonably rejected their valid offer of reinstatement. The Board concluded that, under settled case law, the striking of the organizer by the owner in the presence of the employees was a ULP. The Board further held that, having witnessed the confrontation between the organizer and the owner, the employees had a reasonable fear of the owner at the time the reinstatement offer was made, and that they were entitled to backpay. The Board affirmed all of the ALJ’s other findings and determinations, as well as the ALJ’s order.

Chairman’s Concurrence

Chairman Gould authored a concurrence in which he agreed that the organizer had legally taken access on the day of the incident, and that Employer’s threat to call law enforcement on the organizer constituted a ULP. He also agreed that the three terminated employees reasonably rejected their offer of reinstatement. With respect to the organizer’s taking access on the day of the incident, the Chairman agreed that Employer’s interference with such access constituted a ULP, but provided a different rationale. The Chairman would not have overturned the ALJ’s finding that the owner believed that the organizer was recording him, nor would he have overturned the ALJ’s conclusion that, because of such belief, the striking of the organizer was not a ULP. Rather, the Chairman would have found a ULP based upon the owner being present in the vicinity while the organizer was taking access, as such presence violated the protected zone in which the organizer and the employees were engaged in protected communications pursuant to lawful access.

See George Amaral Ranches, Inc. (2014) 40 ALRB No. 10

Board Issues Decision in Arnaudo Brothers, LP/Arnaudo Brothers, Inc., Case No. 2013-MMC-001

On October 3, 2014, the Board issued its decision and order in the above-entitled case.

Background

On September 9, 2014, mediator Matthew Goldberg (the “Mediator”) issued a “Supplemental Report” in Mandatory Mediation and Conciliation (“MMC”) proceedings between Arnaudo Brothers, LP/Arnaudo Brothers, Inc. (“Arnaudo”) and the United Farm Workers of America (the “UFW”). In the Supplemental Report, the Mediator, made certain rulings, including that the term of the MMC Contract, which had been set at one year in the Mediator’s original report, would be extended to two years. With respect to the wage rates that would apply during the second year of the MMC Contract, the Mediator ordered that the matter would be “remanded to the parties for consideration of second-year wage rates.” Both Arnaudo and the UFW petitioned for review of the Supplemental Report. The UFW argued that the remand on second-year wage rates was improper.

Board Decision

The Board remanded the matter to the Mediator for further proceedings. The Board noted that language in the MMC statutes, the Board’s regulations, and the Board’s June 27, 2014 order in this case (40 ALRB No. 7) required that the Mediator’s second report state the basis for any determinations made and include citations to the relevant portions of the record. However, in the Supplemental Report the Mediator “remanded” the issue of second-year wage rates without stating any basis for the determination and without any reference to the record. Accordingly, the Board held that the Supplemental Report failed to meet the minimum standards for a mediator’s report. The Board remanded the matter to the Mediator for further proceedings and the issuance of a second report pursuant to Labor Code, section 1164.3 subdivision (c). The petitions for review were dismissed without prejudice as premature.

See Arnaudo Brothers, LP, et al. (2014) 40 ALRB No. 9

Office of Administrative Law Approves Regulations To Implement Senate Bill 126

On May 2, 2012, the Office of Administrative Law (OAL) approved the regulations adopted by the ALRB on April 18, 2012, implementing Senate Bill 126 and filed the approved regulations with the Secretary of State. OAL also granted the ALRB's request that the regulations go into effect immediately upon filing, therefore the regulations are now in effect. On April 18, 2012, the Agricultural Labor Relations Board (ALRB or Board) adopted regulations to implement Senate Bill 126. That bill made various changes to the Agricultural Labor Relations Act. The Board had previously held a public hearing on January 20, 2012 on the proposed regulations, hearing oral comments and accepting additional written submissions. At its scheduled February 1, 2012 public meeting the Board voted to adopt the regulations with what were considered nonsubstantive changes in response to the public comment received. While the proposed regulations were pending review by the OAL, it came to the Board’s attention that some of the changes arguably could be termed “substantive” and thus may have required a 15-comment period. Accordingly, in order to ensure complete compliance with the letter of the rulemaking requirements of the Administrative Procedure Act (Gov. Code § 11340, et seq.), on March 21, 2012 the Board withdrew the rulemaking file from OAL and rescinded its February 1, 2012 adoption of the proposed regulations. The Board then issued a 15-Day Notice providing the public the opportunity to submit comment on the changes made. No comments were received.

Text of Amendments to Implement SB 126, as Adopted on April 18, 2012

Subsequent Histories Table

The Subsequent Histories Table has been updated to include Board decisions through Volume 38 (2012). The updated pages are page 40 and 41.

See Subsequent Histories Table for updated page.

2010 and 2011 Case Digest Supplements

The supplements to the ALRB Case Digest for Volume 36 (2010) and Volume 37 (2011) can be used in conjunction with the digest issued in January of 1994 and the earlier supplements previously issued.

See 2010 ALRB Case Digest Supplement and 2011 ALRB Case Digest Supplement.

Case Digest Merged

The Case Digest and its supplements through 2011 have been merged into one document.

See ALRB Case Digest.